Flag Salute – Rights of Students and Schools

By Robert M. Schwartz, Esq. and Wayne Oppito, Esq.

In the last few weeks there has been much press coverage over San Francisco 49ers quarterback Colin Kaepernic’s refusal to stand for the National Anthem. Some have criticized his action as being disrespectful to the men and women serving in the armed forces. Others, including President Obama, have pointed out that Kaepernic is merely exercising his constitutional right of free expression.

That Kapernic is exercising a constitutional right is not in dispute. As has been reported in the press, Kaepernic is not the first sports figure to use the Pledge of Allegiance or the National Anthem as a symbolic voice of protest. However unpopular Kaepernic’s stance may be in certain quarters, the whole point of freedom of expression is to be able to express unpopular or controversial ideas.

What do you do if students decide to follow Kaepernic’s example? Can students who choose to sit during the National Anthem or the Pledge of Allegiance be forced to stand at attention? The short answer is: no. Students, like Kaepernic, have the right to refuse to stand for the National Anthem or the Pledge of Allegiance, provided that they are exercising a mode of symbolic free expression and are not intending to be disruptive.

As the cases below demonstrate, the constitutional interpretations on this issue have evolved dramatically over the years.

In a 1937 in a case called Hering, et al v. State Board of Education, the Supreme Court of New Jersey addressed statutory language similar to N.J.S.A. 18A:36-3, except for the conscientious scruples exception. Two children, ages five and seven, were expelled from school because they refused to salute the flag and recite the Pledge of Allegiance. In challenging the expulsion, they claim that the statute was invalid because it infringed on the two students’ religious freedom. The claim was rejected. The Court said:

Those who resort to educational institutions maintained with the State’s money are subject to the commands of the State . . . . The performance of the command of the Statute in question could, in no sense, interfere with religious freedom. It is little enough to expect of those who seek the benefit of the education offered in the Public Schools of this State that they pledge allegiance to the Nation and the Nation’s flag. The Pledge of Allegiance is, by no stretch of the imagination, a religious right. It is a patriotic ceremony which legislature has the power to require of those attending schools established at public expense. A child of school age is not required to attend the institutions maintained by the public. . . . Those who do not desire to conform with the commands of the statute can seek their schooling elsewhere. Hering v. State Board of Education,117 N.J.L. 455,456 (1937).

As a result, the students’ expulsion was affirmed.

In a 1942 decision, during World War II, the New Jersey Supreme Court appeared to back-off the harsh result of the Hering case. In a matter entitled In Re Latrecchia, two children, ages and 13 and 14, who were Jehovah’s Witnesses, were expelled from school because they would not salute the American flag. Subsequently, their parents were convicted of a disorderly persons offense because their children were not in regular attendance at school. The Court overturned the disorderly persons conviction of the children’s parents because the children’s failure to attend school was due to the school’s decision to expel them—not because of anything that their parents did. With respect to the flag salute issue itself, while agreeing that the State was within its right to compel those who attend public schools to salute the flag, the Court quoting from another decision out of New York entitled People v. Sandstrom said:

A salute of the flag is a gesture of love and respect . . . fine when there is real love and respect. The flag is dishonored by a salute by a child in reluctant and terrified obedience to a command of secular authority which clashes with the dictates of conscience. The flag ‘cherished by all our hearts’ should not be soiled by the tears of a little child. The Constitution does not permit and the Legislature never intended, that the flag should be so soiled and dishonored.

The Court concluded its decision by stating that “Liberty of conscience is not subject to uncontrolled administrative action.”

In 1943, the United States Supreme Court weighed in on this issue in the matter of West Virginia v. Barnette. It ruled that a requirement that all pupils salute the flag was unconstitutional. The court said:

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit, which it is the purpose of the First Amendment to our Constitution to reserve from all official control. “The Court added, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

This sentiment was fully adopted by the New Jersey courts in Holden v. Board of Ed. of the City of Elizabeth. The Petitioners there were a group of elementary-age students, suspended from school because they refused to salute the flag and repeat the Pledge of Allegiance. They claimed that, as Muslims, they were taught that it would be contrary to the teachings of Islam to pledge allegiance to any flag, whether the flag of Islam or the flag of the United States. For its part, the Board of Education of Elizabeth argued that the “exception for conscientious scruples was never intended to be so broadly construed as to include Petitioners’ beliefs.” The Court found that the action of the Elizabeth Board of Education violated the children’s constitutional rights. It held that:

Neither our domestic tranquility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremony, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution’s plan and purpose.

The statute regarding flag salute is N.J.S.A. 18A:36-3. It states in relevant part that every board of education shall:

Require the pupils in each school in the district on every school day to salute the United States flag and repeat the following pledge of allegiance to the flag: “I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all,” which salute and pledge of allegiance shall be rendered with the right hand over the heart, except that pupils who have conscientious scruples against such pledge or salute, or are children of accredited representatives of foreign governments to whom the United States government extends diplomatic immunity, shall not be required to render such salute and pledge but shall be required to show full respect to the flag while the pledge is being given merely by standing at attention, the boys removing the headdress.

In Lipp v. Morris, the Third Circuit of the United States Court of Appeals analyzed the scope of that statute’s application. The plaintiff, a sixteen year old student, contended that the statutory requirement that she stand during the recitation of the Pledge of Allegiance violated her constitutional rights because it compelled her to make what she termed a “symbolic gesture.” Relying on the U.S. Supreme Court decision in West Virginia Board of Education v. Barnette, Lipp urged that her right to remain silent and not to be forced to stand during the Pledge of Allegiance was protected by the First Amendment. The Court agreed. The Court said that any requirement that she stand at respectful attention while the flag salute was being administered was an “unconstitutional requirement that the student engage in a form of speech” and therefore could not be enforced.

Based on this case law, as it stands today, students who refuse to stand for the Flag Salute or the National Anthem to make a political statement or act out of some discernible religious belief are exercising rights of free expression. This is not to mean that a teacher or an administrator can’t ask students who refuse to stand, why they refuse. They can. And if a student who refuses to stand is under 18 years of age, the teacher or the administrator can discuss the matter with the student’s parents, though administrators and teachers should be mindful that the constitutional right belongs to the student—not the parents. However, if the reasons given by the student amount to a form of symbolic political speech—protest over a government policy—or are based on religious beliefs and are not intended to be disruptive—the students’ right of free expression may not be abridged.